UK: Supreme Court prohibits publication of a threesome

by Tobias RaabIn a judgement given on May 19th 2016, the UK Supreme Court ruled in favour of a celebrity who had taken legal actions against the News Group Newspapers. The Court ruled with a majority of 4:1 (Case no.: [2016] UKSC 26).

The celebrity and his wife have two young children and are well-known individuals in the entertainment business. He had a sexual relationship with one person between 2009 and 2011 and, on one occasion, a sexual encounter with that person and a third person. After the editor of the Sun on Sunday newspaper, published by News Group Newspapers (“NGN”), had notified the celebrity about his plan to publish a report about his affairs, the celebrity lodged an application for an injunction to prohibit the publication. He claimed publishing a report about these events would violate his rights to privacy and confidentiality, protected by article 8 of the European Convention on Human Rights (ECHR).

The court had to balance the celebrity’s rights according to article 8 ECHR with the defendant’s right to freedom of expression under article 10 ECHR. After the High Court had refused the application, the Court of Appeal allowed the celebrity’s appeal on January 22nd 2016, granting an interim injunction and prohibiting the publication of any information that could disclose the celebrity’s identity as well as any details of his relationships. Later on, his identity was revealed by print media publications in the United States on April 6th 2016, and thereafter in Canada and Scotland as well.

The celebrity then succeeded in getting an injunction for any publications of hard copy editions and for geo-blocking of all websites making the reports available online, to keep internet users in England and Wales from visiting those websites. Nonetheless, in the following several other websites and social media accounts published details on the story. The defendant then applied to the Court of Appeal on April 12th 2016 for a revocation of the interim injunction, which prohibited him to publish any information on the already publicly known story.

He argued that the public already knew all details and that there were little chances for the celebrity to obtain a permanent injunction in the principle proceedings. The Court of Appeals lifted the injunction on April 18th 2016.

The Supreme Court restored it. As the Supreme Court made clear, the Court of Appeal had falsely assumed that section 12 of the Human Rights Act would enhance “the weight which Article 10 rights carry in the balancing exercise”. The judges stated it had been established by case law, that neither article 8 nor article 10 had preference over the other and that there always had to be an intense focus on the comparative rights being claimed in the individual case.

The Supreme Court indeed decided that it might have become difficult for the celebrity to obtain a permanent injunction in so far as his claim is based on confidentiality, after details of his relationship had widely been spread on the internet. Nonetheless, the judges pointed out, that this only applied as far as his claim is based on confidentiality. Different thoughts had to be taken into consideration in terms of privacy claims, as any additional publication could affect the celebrity’s family and the degree of intrusion and harassment. That is why the Supreme Court found the celebrity’s privacy claims to be highly relevant.

The judges furthermore decided that the injunction could still serve a useful purpose because there was a qualitative difference between the online information and the media storm the celebrity would have to face if the story was going to be published by English media in hard copy in addition to an unrestricted internet coverage of the story. The Supreme Court decided that publication in the media in hard copy would have been contrary to the interests of the celebrity’s children and in breach of the requirement to show an exceptional public interest for the intrusion set out in the Editors’ Code of Practice to which the defendant had subscribed.

In relation to the central issue of the case, which is the question whether a permanent injunction would be granted in the principle proceedings, the majority of the Supreme Court judges balanced all of the above-named factors and concluded that the celebrity was likely to succeed at trial in demonstrating a serious violation of his and his family’s privacy rights, which overweighed the public interest in this case. Therefore, the celebrity was probably going to be granted a permanent injunction at main trial which was why, in the view of the judges, the interim injunction was to be maintained.

Ass. iur. Tobias Raab works as freelancer for the Institute of European Media Law, Saarbrücken.

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